Austin American Statesman

Change proposed in innocence fund law
Houston man's claim blocked by lack of letter from DA
By Mike Ward, American Austin-Statesman
March 21, 2005

Josiah Sutton spent more than four years in prison for a crime that DNA tests say he didn't commit.

The courts overturned his sentence for rape and freed him. Gov. Rick Perry gave him a full pardon last summer.

Nearly a year later, Sutton, 23, is still waiting for his $100,000 check from a special state fund established four years ago to compensate Texans who have been wrongfully imprisoned.

The reason: Sutton can't get a required letter from Houston prosecutors admitting his mistaken conviction.

"It's ridiculous," said state Sen. Rodney Ellis, D-Houston, who authored the law establishing the state fund. "This was not what was intended. . . . This was not the way it was supposed to work."

Today, Ellis will highlight Sutton's plight before the Senate Criminal Justice Committee, as he presses for passage of a bill to clear the way for Sutton and three other wrongfully convicted Texans in his position to finally get their money.

Twenty-five wrongfully convicted Texans have been paid more than $2 million from the state.

Under Senate Bill 87, 40 words would be deleted from current law — a provision that requires people who apply for the money to provide a "certification" of their innocence from the prosecutor who convicted them.

That provision was quietly inserted into the law in 2003 as part of a larger bill to clarify parts of state law dealing with the comptroller's office.

In Sutton's case, that meant a letter from the office of Harris County District Attorney Chuck Rosenthal, seen as one of the hardest-nosed prosecutors in the state.

Rosenthal did not return telephone calls Monday but told the Houston Chronicle last year, "If I knew he was innocent, I would (write the letter). But I don't know that now. . . . If you give me some good reason to believe (the victim) was mistaken, I will probably send the letter."

Sutton's story began in 1998 when, at age 16, he was arrested for rape after the victim spotted him and another man while driving down a street and picked him out of a police lineup, according to Houston officials.

His conviction a few months later was based on DNA evidence.

At age 17, Sutton was sentenced to 25 years in prison.

The Houston crime lab that processed the evidence that sent Sutton to prison was discredited 4 1/2 years later amid investigations that showed its testing practices were flawed.

Sutton's case was among those in which evidence was retested and, in March 2003, new tests excluded Sutton as a suspect.

A tangle of red tape with the state Board of Pardons and Paroles delayed his review for clemency for 11 months.

His attorney, David Dow, said at the time the delays highlighted how much easier it is in Texas to convict someone who is innocent than to it is to correct a wrongful conviction.

In May 2004, Perry signed a pardon for Sutton — a pardon based on his actual innocence, one of just six the governor has granted.

Released from prison, Sutton went about gathering up the required paperwork to apply to the wrongful conviction fund for money to start his new life.

Under the law, he was eligible for up to $25,000 for each year he had spent in prison, officials said.

Lawmakers originally passed the law because they felt the state has a duty to pay people who are wrongfully convicted for time lost to prison and to help them re-integrate into society.

Then the roadblock appeared.

In addition to the copy of the pardon and a statement from prison officials on how long Sutton had been incarcerated, officials at the comptroller's office told his attorney he needed a letter from the local DA, Ellis said.

"They said no," the senator said.

Because of that, Sutton chose not to file a claim with the state fund — "important, since once you are denied, you can't apply again," Ellis said.

Ellis said he was dumbfounded. "I passed the law. . . . I knew what was supposed to happen," he said. "At least I thought I did."

Ellis said he found that a separate bill passed by the Legislature two years ago added the requirement of a letter from prosecutors.

"It was in an omnibus bill concerning the comptroller's office," Ellis said. "It got through without anyone knowing it was there."

Under the original law, the comptroller's office is responsible for writing the checks.

Jesse Ancira Jr., associate deputy comptroller, said Monday that the wording requiring the prosecutor's certification was intended to ensure that payments were properly made — not to delay them.

The comptroller's office, he noted, is not in the business of validating innocence claims.

Since the problem arose, Ancira said the comptroller's office has been working with Ellis to correct it.

Mark Sanders, a spokesman for Comptroller Carole Keeton Strayhorn, said three other applicants to the wrongful conviction fund have faced delays like Sutton: One from Austin, one from Wichita Falls, one from Jacksonville.

Travis County District Attorney Ronnie Earle and other prosecutors did not return calls Monday concerning the Austin case.

Perry's office said no pardons based on actual innocence have been granted in those three cases.

Sutton could not be reached for comment Monday.

For his part, Ellis said he remains chagrined that the state created a system that continued to punish those who have been found innocent.

In addition to SB 87, he has filed a separate measure, Senate Bill, that would raise the compensation from $25,000 to $50,000 a year.

"After these individuals suffer in prison for a crime they did not commit, you would think the state at least would try to help them put their lives back together,
" Ellis said.

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